Obtained J2 Favorable Rec - Next Step?

[eddiek]

We just found out after 4 months of my wife's application for a waiver at the DOS, that she's been issued a favorable recommendation (on their site). Great news! I know we should be recieving a letter soon, but I am curious what happens when it is "sent" to the USCIS.

Our case is a little screwy in that we married in October of '05 (Im a citizen), filed all the necessary papers and went to our interview last July. They approved the marriage, but sent the case to our district office because she was an out-of-status J2 and then later denied her the green card by the district office because of her J-visa. But...the USCIS office themselves told us not to file a waiver months before we applied because she was divorced from the J-1 and the law only states that the "legal spouse" must return home for 2 years with the J-1. We got caught in the immigration black hole.

But, with the help of our lawyer, we filed for the waiver in August and have been waiting since then for a recommendation and now have it. My worry is how it get's synced back up with our case at the USCIS since it's already been filed. Does the DOS send it straight to them and they link it to our case or do they send it to us?

Any insight is greatly appreciated.

Thanks,
Eddie

 

[jk0274]

Congrats on the waiver. You're almost through. But let me make sure I get your case correctly:

Our case is a little screwy in that we married in October of '05 (Im a citizen), filed all the necessary papers and went to our interview last July. They approved the marriage, but sent the case to our district office because she was an out-of-status J2 and then later denied her the green card by the district office because of her J-visa

I assume by "all necessary papers" you mean you filed a I-130 petition for alien relative and a I-485 application to adjust status to permanent resident. Correct? In which case, which of these two got approved? And were you issued an official denial for the other?

But...the USCIS office themselves told us not to file a waiver months before we applied because she was divorced from the J-1 and the law only states that the "legal spouse" must return home for 2 years with the J-1. We got caught in the immigration black hole.

Actually, the USCIS officer who told you this was (sorta) wrong. The truth is that if your wife was here on a J-2, that fact alone in and of itself made her subject to HRR. What the USCIS didn't know to tell you was that, since she had since gotten divorced, she is one of those rare cases that is allowed to apply for a "no objection" based waiver as a J-2 (normally, a J-2 cannot apply separately, only the J-1 can, but a J-2 who is divorced is one of maybe 2 exceptions to that rule). Therefore, your wife was ineligible to apply for adjustment of status until she had gotten a waiver or fulfilled her 2-year requirement. So you found that out too late, I suppose, but thankfully your lawyer got your waiver!

But, with the help of our lawyer, we filed for the waiver in August and have been waiting since then for a recommendation and now have it. My worry is how it get's synced back up with our case at the USCIS since it's already been filed. Does the DOS send it straight to them and they link it to our case or do they send it to us?

Any insight is greatly appreciated.

Thanks,
Eddie

Again, what exactly got denied and what got approved? I believe that you probably have an approved I-130 but a denied I-485. In that case, you may be able to file what's called a "motion to re-open" with your I-485; your lawyer can help you with that and make sure you are eligible. Otherwise, you may have to file a brand new I-485. Are you sure your I-485 case is still open? Since your wife was ineligible to apply without the waiver, it's hard to see how the case is still open.

Points to consider:
1- A person subject to the J-1 HRR cannot apply for I-485 without evidence that the USCIS is also in receipt of a J-1 waiver application (this is at least true for No Objection cases).
2- Such evidence is in the form of the favorable recommendation issued to the USCIS by the DOS. As the applicant also received a copy of the DOS recommendation, the applicant is required to include a copy of this document with the I-485 application. Once the USCIS separately receives the original recommendation from DOS (which is transmitted electronically), it generates a receipt with a receipt number. It does not automatically link this case with any other pending case for the same application. Therefore;
3- It is preferable to wait until you receive the official USCIS receipt, not just the DOS recommendation, that will be issued (supposedly but not always) once the USCIS receives the DOS recommendation. This is because the adjudicator of your wife's I-485 may decide to pause processing of the case and issue a Request for Additional Evidence from your wife by mail instead of looking up her name in the system and finding out whether the case was approved or not. The onus is on the applicant to provide all evidence, not on the adjudicator to look it up. But if the adjudicator has the USCIS receipt number, they can just punch it in and know immediately that the case has (hopefully by then) approved. Also in some cases (like mine), they cannot find the J-1 waiver case by typing in the name.

If her I-485 case is still pending, do not assume that anything will be automatically "linked" to another open case. My advice is to wait for the USCIS receipt and send a copy of that with a cover letter asking them to append this J-1 receipt to the I-485 (clearly print the I-485 receipt number on the cover letter).

Good luck.

 

[mmed]

My 2 cents which is almost a repeat of what jk0274 said:
1- Your wife is allowed to apply for waiver from J2 because she divorced from the J1 principal and this is the case and a favorable recommendation is already sent (electronically) to the USCIS. The DOS will send you a copy of this recommendation (within 3 weeks) and the USCIS suppose to send you another receipt form (which will be called I-612).
2- I think your wife overstayed her visa (her J2 expired sometime ago and did not leave the country). After her divorce, her J2 status will be void, by then she will be out of status. Now she should file form I-485 Supplement A and pay $1000 more in addition to filling the regular form I485 with its fees ($395).
3- You can now request to reopen her denied I-485 case and at the same time file form I-485 supplement A with its fees (a lawyer is important her)
Good luck

 

[eddiek]

Hi! Thanks to both of you! This is good information.

To answer some of your questions, yes, We filed the I-130 and the I-485. The I-130 was stamped approved at our interview, but the denial was the I-485 from the USCIS District Director based on the fact that we hadn't filed a waiver. It says at the end of the letter that "there is no appeal from this decision and we may request a review of this determination in front of an Immigration Judge." So, I'm not sure what to do. Maybe we file both the supplement and re-file the I-485 like you suggest, but I'm a little nervous to do both since it might send it in two directions.

Mmed, to answer your #2, we got married in her 30-day grace period after her divorce terminated her visa, so she was legal, but yes, "out-of-status".

So, is the favorable recommendation the actual "waiver", or is the waiver issued by the USCIS after they recieve the favorable recommendation?

 

[mmed]

Hi! Thanks to both of you! This is good information.

To answer some of your questions, yes, We filed the I-130 and the I-485. The I-130 was stamped approved at our interview, but the denial was the I-485 from the USCIS District Director based on the fact that we hadn't filed a waiver. It says at the end of the letter that "there is no appeal from this decision and we may request a review of this determination in front of an Immigration Judge." So, I'm not sure what to do. Maybe we file both the supplement and re-file the I-485 like you suggest, but I'm a little nervous to do both since it might send it in two directions.

Mmed, to answer your #2, we got married in her 30-day grace period after her divorce terminated her visa, so she was legal, but yes, "out-of-status".

So, is the favorable recommendation the actual "waiver", or is the waiver issued by the USCIS after they recieve the favorable recommendation?

So, that is good since she did not accumulate illegal stay but because of the out of status she should apply for the supp. Either you request for reopen the denied case, which I think may not work (do a trial, it is just a cover letter and say that since the reason is the waiver, here it is), or apply again with new I-485 (the only way for her to be legal is to adjust her status).
The favorable recommendation is not the final waiver, it is just a recommendation from the DOS to the USCIS to grant a waiver. The final decision is in the hands of the USCIS, (99.99999999%) will issue final waiver.
It is allowed by USCIS regulations to apply for AOS with just the favorable recommendation (unlike what you did which is totally wrong by applying without the recommendation and exposed your approved I-130 to denial). The I-485 will safe and a decision will not be taken without the final waiver.

 

[Tec_man]

congrats

Congrats Eddiek!

We just got our J-2 waiver as well though a different path, but I will do a seperate post on the details!

Pete

 

[LucyMO]

2- I think your wife overstayed her visa (her J2 expired sometime ago and did not leave the country). After her divorce, her J2 status will be void, by then she will be out of status. Now she should file form I-485 Supplement A and pay $1000 more in addition to filling the regular form I485 with its fees ($395).

mmed, please be careful about dispensing wrong advice. Since she is married to a US citizen, her overstay will be forgiven (granted she does not leave the US until she gets her GC) and I-485 Supplement A is NOT needed in her case.

 

[mmed]

mmed, please be careful about dispensing wrong advice. Since she is married to a US citizen, her overstay will be forgiven (granted she does not leave the US until she gets her GC) and I-485 Supplement A is NOT needed in her case.

Thanks for your notes and clarification.